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1954 DIGILAW 24 (SC)

State Of Bihar v. Abdulmajid

1954-02-11

B.K.MUKHERJEE, GHULAM HASAN, M.C.MAHAJAN, S.R.DASS, VIVIAN BOSE

body1954
Judgment MAHAJAN, C.J.I. : This is an appeal by the State of Bihar against the judgment of the High Court of Judicature at Patna whereby the High Court passed a decree for arrears of salary of the respondent against the State from 30-7-1940 up to the date of the institution of the suit. 2. The undisputed facts of the case are: That the respondent was appointed a Sub-Inspector of Police by the Inspector-General of Police, Bihar and Orissa, in January 1920. In the year 1937 departmental proceedings were taken against him and he was found guilty of cowardice and of not preparing search lists and was punished by demotion for ten years. On appeal, the Deputy Inspector-General of Police held that the respondent was guilty of cowardice but acquitted him of the other charge. By an order dated 23-7-1940 which was communicated to the respondent on 29-7-1940 the D.I.G. of Police having found him guilty of cowardice made an order dismissing him from service. Further appeals by the respondent to the Inspector-General of Police and to the Governor of Bihar were unsuccessful. 3. Aggrieved by the departmental action taken against him, the respondent filed the suit out of which this appeal arises in the court of Additional Subordinate Judge against the State of Bihar for a declaration that the order of the D.I.G. of Police dismissing him from service was illegal and void and that he should be regarded as continuing office. He also claimed a sum of Rs. 4,241/- from 30-7-1940 to the date of the suit on account of arrears of salary. The State contested the claim and pleaded that the plaintiff held his service at the pleasure of the Crown, and could not call in question the grounds or the reasons which led to his dismissal, and that in any case he had been reinstated in service from 30-7-1940 and the order of dismissal therefore was no longer operative, and the suit had thus become infructuous. The Additional Subordinate Judge by his Judgment dated 2-2-1945 dismissed the suit on the finding that the Government having reinstated the respondent he had no cause of action. As regards the arrears of salary, it was held that the claim to it could only be made according to the procedure prescribed under R. 95 of S. 4 of Chapter 4 of Bihar and Orissa Service Code. As regards the arrears of salary, it was held that the claim to it could only be made according to the procedure prescribed under R. 95 of S. 4 of Chapter 4 of Bihar and Orissa Service Code. This decision was confirmed in appeal by the Additional District Judge. On further appeal the High Court reversed these decisions and decreed the claim for arrears of salary in the sum of Rs. 3,099-12-0. It was held that R. 95 of the Bihar and Orissa Service Code had no application because the respondent had never been dismissed within the meaning of that Rule. It was further held that the plaintiff was entitled to maintain the suit for arrears of pay in view of the decision of the Federal Court in Punjab Province v. Tara Chand , AIR 1947 FC 23 (A), the correctness of which was not affected by decisions of the Privy Council in cases of --- High Commr. for India v. I. M. Lall , AIR 1948 PC 121 (B) and --- North West Frontier Province v. Suraj Narain Anand , AIR 1949 PC 112 (C). 4. The principal questions involved in this appeal are : (1) Whether the High Court correctly held that R. 95 above-mentioned had no application to the case? (2) Whether a suit for arrears of salary by a civil servant is competent in a civil court? 5. Rule 95 of the Bihar and Orissa Service Code provides : "Rule 95, When the suspension of a Government servant as a penalty for misconduct is upon reconsideration or appeal, held to have been unjustifiable or not wholly justifiable; or when a Government servant who has been dismissed or removed, or suspended pending enquiry into alleged misconduct is reinstated : the revising or appellate authority may grant to him for the period of his absence from duty (a) if he is honorable acquitted, the full pay to which he could have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal removal or suspension : or (b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may direct". 6. 6. The provisions of this Rule enable an appellate or revising authority, when making an order of reinstatement to grant the relief mentioned in the Rule. Obviously these provisions have no application to the situation that arose in the present case. The respondent here was dismissed by the D.I.G. of Police, though he was appointed by the Inspector-General of Police. This was clearly contrary to the provisions of S. 240(3), Government of India Act, 1935 which provides that no person shall be dismissed from the service of His Majesty by an authority subordinate to that by which he was appointed. But nevertheless the appeal preferred by him to the Inspector General of Police was rejected and his petition to the Government of the State met with the same fate, so that he was never reinstated by the order of any revising or appellate authority. It was only after the present suit was filed that the Government reinstated him. This was no proceeding in revision or appeal. In these circumstances the enabling provisions of R. 95 had no application whatsoever to the case of the plaintiff. What happened subsequently is a matter wholly outside the contemplation of the Rule. After the institution of the suit, the Chief Secretary to the Government of Bihar realising the untenability of the Government s position wrote to the Inspector General of Police that the order of dismissal should be treated as null and void and that the respondent should be reinstated. Thus the reinstatement of the plaintiff following the telegram of 30-12-1943 was not made at the instance of any of the authorities mentioned in the rule in exercise of their jurisdiction, appellate or revisional, but was made at the instance of the defendant in the suit who had realised that it was not possible to defend the order of dismissal. For the reasons given above we are of the opinion that the High Court was right in holding that R. 95 has no application to the facts and circumstances of this case and that the enabling provisions of this Rule not operate as a bar to the plaintiffs action. 7. The next contention of the learned Solicitor General that a suit by a public servant against the State for recovery of arrears of salary cannot be maintained in a civil courts is again, in our opinion, without substance. 7. The next contention of the learned Solicitor General that a suit by a public servant against the State for recovery of arrears of salary cannot be maintained in a civil courts is again, in our opinion, without substance. We think that the matter is covered by the decision of the Federal Court in - AIR 1947 FC 23(A) , with which we find ourselves in respectful agreement. In that case the learned Attorney-General had argued with great force all the points that were urged in this appeal before us by the learned Solicitor-General and were dealt with by the Federal Court in great detail. It was there held that the prerogative right of the Crown to dismiss its servants at will having been given statutory form in sub-section (1) of S. 240, Government of India Act, 1935, it could only be exercised subject to the limitations imposed by the remaining sub-section of that section and that it must follow as a necessary consequence that if any of those limitations was contravened the public servant concerned had a right to maintain an action against the Crown for appropriate relief and that there was no warrant for the proposition that that relief must be limited to a declaration and should not go beyond it. It was further held that even if apart from the prerogative of the Crown to terminate the service of any of its servant at will, the further prerogative could be invoked that no servant of the Crown could maintain an action against the crown to recover arrears of pay even after the pay had been earned and had become due and that the prerogatives of the Crown had been preserved in the case of India by S. 2 of the Constitution Act, it must be presumed that this further prerogative had been abandoned in the case of India by the provisions of the Code of Civil Procedure and that it was not possible to subscribe to the proposition that while a creditor of a servant of the Crown was entitled as of right to comple the Crown to pay to him a substantial portion of the salary of such servant in satisfaction of a decree obtained against him the servant himself had no such right. Kania J. as he then was, in a separate but concurring judgment, negatived the contention of the Attorney-General in these terms: "The question whether the law in England and India is the same on this point should be further considered having regard particularly to the provisions found in the Civil P. C. In this connection, S. 60(1) and cls. (i) and (j) of the proviso and Explanation (2) should be noted. Under S. 60 all property belonging to the judgment debtor is liable to be attached. In stating the particulars of what may not be attached and sold, exemption to a limited extent is given in respect of the salary of a public servant. These provisions of the Code of Civil Procedure were not noticed in- Lucas v. Lucas , (1943) P. 68 (D), as the application was made in England and the Civil P. C. of 1908 did not apply there. The provisions of S. 60, Civil P. C. give a right to the creditor to attach the salary of a servant of the Crown. There can be no dispute about that. If the contention of appellant was accepted, the result will be that while the civil servant cannot recover the money in a suit against the Crown his creditor can recover the same in execution of a decree against the civil servant. This right of the creditor to receive money in that manner has been recognised in innumerable decisions of all High Court. There were similar provisions in the Civil P. C. of 1882 also. By reason of S. 292 of the Constitution Act, the Code of Civil Procedure, 1908 continues in force, in spite of the repeal of the Government of India Act of 1915. Could the Imperial Parliament in enacting S. 240 and being deemed aware of the provisions of S. 60, Civil P. C., have thought it proper to give this privilege to a creditor, while denying it to the officer himself? To hold so, the words of S. 240 of the Constitution Act will have to be unduly and unnaturally strained. Moreover in Explanation (2) of S. 60 the word salary is defined. In the proviso to S. 60 cl. (i) the word salary is used as applicable to private employees and to Government servants also. To hold so, the words of S. 240 of the Constitution Act will have to be unduly and unnaturally strained. Moreover in Explanation (2) of S. 60 the word salary is defined. In the proviso to S. 60 cl. (i) the word salary is used as applicable to private employees and to Government servants also. The word salary in respect of a private employee must mean an enforceable right to receive the periodical payments mentioned in the Explanation. In that connection it is not used in the sense of a bounty. It will therefore be improper to give the same word, when used with regard to a civil servant under the Crown a different meaning in the same clause. It seems to me therefore that the Imperial Parliament has not accepted the principle that the Crown is not liable to pay its servant salary for the period he was in service, as applicable to British India or as forming part of the doctrine that service under the Crown is at His Majesty s pleasure". 8. The learned Solicitor-General contended that the decision in AIR 1947 FC 23 (A) was no longer good law & should be deemed to have been dissented from and overruled by the decision of their Lordships of the Privy Counell in - AIR 1948 PC 121 (B) and that in any event the view expressed in that decision should be preferred to the view expressed in "Tara Chand Pandit s case (A) , We are unable to uphold this contention. It seems that during the arguments in Lal s case, (B) . attention of their Lordships was not drawn to the decision of the Federal Court in "Tara Chand Pandit s case, (A) because the point was not directly involved therein. In that case no claim had been made by the plaintiff for arrears of his pay. The plaintiff had sued for a declaration simpliciter that the order of his removal from the office was illegal and that he was still a member of the Indian Civil Service. The High Court granted that declaration. The Federal Court, on appeal, substituted for the declaration made by the High Court a declaration that the plaintiff had been wrongfully direction to take such action as it thought necessary in regard to any application by the plaintiff for leave to amend the claim for recovery of damages. The High Court granted that declaration. The Federal Court, on appeal, substituted for the declaration made by the High Court a declaration that the plaintiff had been wrongfully direction to take such action as it thought necessary in regard to any application by the plaintiff for leave to amend the claim for recovery of damages. On appeal to the Privy Council the decree and the order made by the Federal Court was modified and their Lordships held that in their opinion the declaration should be varied so as to declare that the purported dismissal of the respondent on 10-8-1940 was void and inoperative and the respondent remained a member of the Indian Civil Service that the date of the institution of the suit, 20-6-1942. The High Commissioner for India had also appealed against the order of the Federal Court remitting the case to the High Court for amendment of the plaint. The plaintiff did not want to maintain the order of the Federal Court to remit, before the Privy Council. He however urged that he was entitled to recover in the suit his arrears of pay from the date of the purported order of dismissal up to the date of action, though this was not one of the reliefs claimed by him in the suit at all. This relief that was claimed by him before the Board was negative by their Lordships on the ground that no action in tort could lie against the Crown and that such an action must either be based on contract or conferred by statute. Their Lordships approved of the judgment of Lord Blackburn in the Scottish case of ---- Mulvenna v. The Admiralty 1926 SC 842 (E), in which that learned Judge laid down the rule in the following terms after reviewing various authorities : "These authorities deal only with the power of the Crown to dismiss a public servant, but they appear to me to establish conclusively certain important points. The first is that the terms of service of a public servant are subject to certain qualifications dictated by public policy, no matter to what service the servant may belong. Whether it be naval, military or civil, and no matter what position he holds in the service, whether exalted or humble. The first is that the terms of service of a public servant are subject to certain qualifications dictated by public policy, no matter to what service the servant may belong. Whether it be naval, military or civil, and no matter what position he holds in the service, whether exalted or humble. It is enough that the servant is a public servant, and that public policy, no matter on what ground it is based demands the qualification. The next is that these qualifications are to be implied in the engagement of a public servant, no matter whether they have been referred to when the engagement was made or not. If these conclusions are justified by the authorities to which I have referred, then it would seem to follow that the rule based on public policy which had been enforced against military servants of the Crown, and which prevents such servants suing the Crown for their pay on the assumption that their only claim is on the bounty of the Crown and not for a contractual debt, must equally apply to every public servant. It also follows that this qualification must be read, as an implied condition, into every contract between the crown and a public servant with the effect that, in terms of their contract they have no right to their remuneration which can be enforced in a civil court of justice, and that their only remedy under their contract lies in an appeal of an official or political kind". 9. The observations made in --- 1926 SC 842(E), which is a Scottish case could not have been made if in the law of that country there were provisions similar to the provisions made in various section of the Code of Civil Procedure referred to by the Federal Court in -- AIR 1947 PC 23(A). It was further urged that the same view was taken by Pilcher J. in --- 1943 P. 68 (D). There the question for consideration was whether the Sterling overseas pay of an Indian Civil Servant was debt owing and accruing within the meaning of R. 1 of O. 45 of the Rules of the Supreme Court and which could be attached in satisfaction of an order for the payment of alimony. There the question for consideration was whether the Sterling overseas pay of an Indian Civil Servant was debt owing and accruing within the meaning of R. 1 of O. 45 of the Rules of the Supreme Court and which could be attached in satisfaction of an order for the payment of alimony. The real point for decision in that case was whether the whole or any portion of the salary of a member of the Indian Civil Service was liable to attachment in England in satisfaction of the Judgment debt. It appears that the attention of the learned Judge was not invited to the provision of S. 60 and other relevant provisions of the Code of Civil Procedure and the learned judge applied the dictum of Lord Blackburn in 1926 SC 842 (E) , to the case of a civil servant from India. As the application was made in England and the Civil P. C. did not apply there, the provisions of the Code were not noticed in that case. We are therefore of the opinion that the rule laid down by their Lordships of the Privy Council in - AIR 1948 PC 121 (B) without a consideration of the provisions of the Code of Civil Procedure relevant to the inquiry and without a consideration of the reasoning of the Federal Court in --- AIR 1947 FC 23 (A) , cannot be treated, particularly because the matter was not directly involved in the suit, as the final word on the subject. We are in no way bound by the decision given either in --- AIR 1947 FC 23(A) , or by the decision given by the Privy Council in --- "AIR 1948 PC 121 (B) But on a consideration of the reasons given in the two judgments we think that the rule of English law that a civil servant cannot maintain a suit against the State or against the Crown for the recovery of arrears of salary does not prevail in this country and that it has been negatived by the provisions of the Statute law in India. 10. Reliance was also placed by the leaned Solicitor-General on the decision of the Fedral Court in --- Suraj Narain Anand v. North West Frontier Province , AIR 1942 FC 3(F). 10. Reliance was also placed by the leaned Solicitor-General on the decision of the Fedral Court in --- Suraj Narain Anand v. North West Frontier Province , AIR 1942 FC 3(F). In that case Suraj Narain having been appointed a sub-Inspector of Police posted in the N. W. F. P. by the Inspector-General of Police of the Province was subsequently dismissed by the Deputy Inspector-General of Police. Failing to get relief by departmental proceedings he instituted a suit in the court of the Senior Subordinate Judge, Peshawar. The Subordinate Judge dismissed the suit as being unsustainable. This decision was upheld by the court of the Judicial Commissioner. The Federal Court held that the Courts below were not justified in dismissing the suit, that the plaintiff was at least entitled to a declaration that the order of dismissal passed against him was void. That court accordingly set aside the decree of the Judicial Commissioner and remitted the case with a declaration that there shall be substituted for the decree appealed against a declaration in the terms above stated, with such further directions as the circumstances of the case may require in light of the observations of their judgment. The Province appealed to the Privy Council against the decision of the Federal Court. It was held by the Board in the first instance allowing the appeal of the North West Frontier Province and reversing the decision of the Federal Court of India, that the North West Frontier Province Police Rules, 1937, has become operative in 1938 at some date before 25-4-1938, when the respondent was dismissed, and that R. 16(1) was a valid rule made under the authority conferred on the appellant by S. 243, Government of India Act, 1935, and that the respondent s suit was rightly dismissed, but subsequently on the petition of the respondent asking the Board to reconsider their decision on the ground that it had been ascertained that the Police Rules of 1937 were in fact printed and published on 29-4-1938, that was, four days after the date of his dismissal, the Board heard the appeal further, when the respondent s allegation was admitted and applying the reasoning in their previously delivered judgment, the Board reversed their former decision and affirmed the judgment of the Federal Court which had held that the respondent s dismissal was void and inoperative. During the arguments before the Privy Council reference was made to S. 60, Civil P. C. and to the decision of the Federal Court in --- AIR 1947 FC 23(A) and it was also noticed that following on the remit of the case to the Judicial Commissioner by the order of the Federal Court dated 4-12-1941, the respondent had obtained a decree or payment of Rs. 2,283 against the appellant in respect of arrears of pay from the date of dismissal to the institution of the suit. When the appeal came before the Board for further hearing their Lordships on 6-8-1948 caused a letter to be addressed to the solicitor representing the appellant, informing him that their Lordships now proposed humbly to advise his Majesty that the appeal should be dismissed, and stating that the order as to costs would not be varied. The letter pointed out that if this advice were tendered, and if His Majesty were pleased to accept it, the effect would be that the declaratory judgment of the Federal Court would stand finally, the letter referred to the award of Rs. 2,283 to the respondent by the Court of the Judicial Commissioner which, according to a submission made by the appellant s counsel, was open to challenge, and inquired whether the appellant wished to have an opportunity of satisfying their Lordships that the point was open, and of being heard on it. By their Lordships direction a copy of this letter was sent to the respondent. An intimation was received by the Privy Council that the appellant did not wish to offer any further arguments on the case. The respondent also did not desire an opportunity of arguing that he should now be awarded arrears of pay from the date of the institution of the suit onwards. In these circumstances the Board refused to deal further with the matter and advised His Majesty that the declaratory judgment of the Fedral Court be restored and proceeded to observe that it would be open to the respondent to pursue any remedy which flows from that declaratory judgment in an appropriate court. Their Lordships concluded the Judgment with the following observations: Their Lordships must not be understood, however, as expressing an opinion that the respondent was entitled as of right to recover the sum of Rs. Their Lordships concluded the Judgment with the following observations: Their Lordships must not be understood, however, as expressing an opinion that the respondent was entitled as of right to recover the sum of Rs. 2,283 which was awarded to him, or that he has any claim to a further sum in respect of arrears of pay. It is unnecessary, owing to the very proper attitude of the appellant, to express any view as to the former question, and the latter question does not arise in this appeal which is from the decision of the Federal Court. If that decision is affirmed the respondent who did not himself enter an appeal, cannot now ask for anything more". It is thus clear that in express terms in this decision their Lordships declined to give any opinion on the question whether the respondent was entitled as of right to recover arrears of pay awarded to him by the Judicial Commissioner, in spite of the circumstance that their attention had been drawn to the decision of the Federal Court in --- AIR 1947 FC 23(A). This decision therefore cannot be said to support the view contended for by the learned Solicitor-General. On the other hand it must be assumed that in spite of their decision in --- AIR 1948 PC 121 (B) their Lordships in this case, the judgment in which was delivered subsequent to the decision in --- AIR 1948 PC 121 (B) on 4-11-1948, did not reaffirm the proposition laid down in that case but preferred to express no opinion on the point. 11. It was suggested that the true view to take is that when the statute says that the office is to be held at pleasure, it means "at pleasure" and no rules or regulations can alter or modify that; nor can S. 60, Civil P. C. enacted by a subordinate legislature be used to construe an Act of a superior legislature. It was further suggested that some meaning must be given to the words holds office during His Majesty s pleasure as these words cannot be ignored and that they bear the meaning given to them by the Privy Council in --- AIR 1948 PC 121 (B) 12. In our judgment, these suggestions are based on a misconception of the scope of this expression. In our judgment, these suggestions are based on a misconception of the scope of this expression. The expression concerns itself with the tenure of office of the civil servant and it is not implicit in it that a civil servant serves the Crown ex gratia , or that his salary is in the nature of a bounty. It has again no relation or connection with the question whether an action can be filed to recover arrears of salary against the Crown. The origin of the two rules is different and they operate on two different fields. 13. The rule that a civil servant holds office at the pleasure of the Crown has its original in the Latin phrase durante bene placito" ("during pleasure") meaning that the tenure of office of a civil servant, except where it is otherwise provide by statute, can be terminated at any time without cause assigned. The true scope and effect of this expression is that even if a special contract has been made with the civil servant the Crown is not bound thereby. In other words, civil servants are liable to dismissal without notice and there is no right of action for wrongful dismissal, that is, that they cannot claim damages for premature termination of their services (See Fraser s Constitutional Law, p. 126; Chalmer s Constitutional Law, P. 186; ---- Senton v. Smith , 1895 AC 229 at p. 234 (G); --- Dunn v. The Queen . (1896) 1 QB 116 (H). 14. This rule of English law has not been fully adopted in S. 240. Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows therefore that whenever there is a breach of restrictions imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the court. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that Government servants hold office during pleasure has been departed from by the statute the Government servants are entitled to relief like any other person under the ordinary law, and that relief therefore must be regulated by the Code of Civil Procedure. 15. Section 292, Government of India Act, 1935, provides that the law in force in British India immediately before the commencement of the Act shall continue in force until altered, repealed or amended by a competent legislature. Sections 100 to 104, Government of India Act, 1935, confer legislative powers on the different legislatures in the country. Item 4 of the Concurrent List in the 7th Schedule reads thus : "Civil Procedure, and all matters included in the Code of Civil Procedure, at the date of the passing of this Act". It is clear therefore that the Indian Legislatures were conferred by the Government of India Act 1935, power to regulate the procedure in regard to actions against the Crown and to make provision for reliefs that could be granted in such actions. These provisions of the Government of India Act, 1935, stand by themselves independently of what is contained in S. 240, and therefore no question arises that S. 60, Civil P. C. which has the sanction of the Government of India Act, 1935, itself is in status lower than the rule laid down in S. 240. 16. The rule of English law that the Crown cannot be sued by a civil servant for money or salary or for compensation has its origin in the feudal theory that the Crown cannot be sued by its vassals or subjects in its own courts. From this theory the Common Law lawyers in England deduced two rule, namely (1) that the King can do no wrong and (2) that as a matter of procedure no action can lie in the King s Courts against the Crown. (See Ridges Constitutional Law, Eighth Edn., p. 295 and Fraser s Constiutional Law, P. 164). The subject in this situation, could only proceed by way of a petition of right which required the previous permission of the Crown. Permission was given by a flat justitia issued by the Crown. (See Ridges Constitutional Law, Eighth Edn., p. 295 and Fraser s Constiutional Law, P. 164). The subject in this situation, could only proceed by way of a petition of right which required the previous permission of the Crown. Permission was given by a flat justitia issued by the Crown. It was not in practice refused to a petitioner who had any shadow of a claim, so that probably the disadvantages of this form of procedure were more theoretical than substantial. Petitions of Right and various other special forms of English procedure applicable exclusively to actions by and against the Crown were abolished by the Crown Proceedings Act, 1947 which provides that in future claims against the Crown might be enforced as of right and without the flat of His Majesty, and that they should be enforceable by ordinary procedure in accordance with the rules of the High Court or the County court as the case might be. Arrears of salary were being actually recovered by the procedure of Petition of Right in England. (See- Bush v. R , 1869 Times New, May 29 (I), There the judgment resulted in favour of the suppliant. The claim was in respect of the amount of salary due to him as master of the Court of Queen s Bench in Ireland. (Robertson s Civil Proceedings by or against the Crown, p. 338) 17. In India, from the earliest times, the mode of procedure to proceed against the Crown has been laid down in the Code of Civil Procedure and the procedure of Petition of Right was never adopted in this country and the same seems to have been the rule in Australia and other Colonies. Section 56 of the Judiciary Act, 1903, relating to the Commonwealth of Australia provides : "Any person making any claim against the Commonwealth, whether in contract or in tort, may in respect of the claim bring a suit against the Commonwealth in the High Court or in the Supreme Court of the State in which the claim arose". Under the New South Wales Act, 39 Vict., No. 38., the Government of the colony is liable to be sued in an action of tort as well as in contract. Section 65. Government of India Act, 1858, conferred the right of suit against the Government. Under the New South Wales Act, 39 Vict., No. 38., the Government of the colony is liable to be sued in an action of tort as well as in contract. Section 65. Government of India Act, 1858, conferred the right of suit against the Government. It provided that "all persons and bodies politic shall and may have and take the same suit, remedies and proceedings legal and equitable against the Secretary of State in Council of India as they could have done against the said Company" (the East India Company) This was replaced by S. 32, Government of India Act, 1915. Sub-section (2) of that section ran as follows : "Every person shall have the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act, 1858 and this Act had not been passed". This was replaced by S. 176(1), Government of India Act, 1935, which substantially reproduced these provisions. From these provisions it is clear that the Crown in India was liable to be sued in respect of acts, which in England could be enforced only by a petition of right. As regards torts of its servants in exercise of sovereign powers, the Company was not, and the Crown in India was not liable unless the act had been ordered or ratified by it. Be that as it may, that rule has no application to the case of arrears of salary earned by a public servant for the period that he was actually in office. The present claim is not based on tort but is based on quantum meruit or contract and the Court is entitled to give relief to him. The Code of Civil Procedure from 1859 right up to 1908 has prescribed the procedure for all kinds of suits and S. 60 and the provisions of O. 21 substantially stand the same as they were in 1859 and those provisions have received recognition in all the Government of India Acts that have been passed since the year 1858. The salary of its civil servants in the hands of the Crown has been made subject to the writ of civil court. It can be seized in execution of decree attached. The salary of its civil servants in the hands of the Crown has been made subject to the writ of civil court. It can be seized in execution of decree attached. It is thus difficult to see on what grounds the claim that the Crown cannot be sued for arrears of salary directly by the civil servant, though his creditor can take it, can be based or substained. What could be claimed in England by a Petition of Right can be claimed in this country by ordinary process. 18. For the reasons given above we are of the opinion that this appeal is without force and we accordingly, dismiss it with costs. Appeal dismissed. For Citation : AIR 1954 SC 245 =1954 SCJ 300=1954 SCA 226= 1954 SCR 786 .